The Honora ble Gre g ory

L . Fr ost, United States District J udg e for the Southern District of * Ohio, sitti ngby

desig nation. 1 NO T REC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 07a0727n.06 F iled: October 10, 2007 No. 05-1847 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT UNITED STAT ES O F AMERICA, ) ) ON APPEALFROM THE Plaintif f-Appellant , ) UNI TED STATES ) DI STRI CT COURT FOR v. ) TH E WE STE RN DI STR I CT ) OF MI CHI GAN G ER AL D W ILM ER

F OU SE, ) ) OP IN ION Defendant-

Appellee . )

BEFORE: COLE an d COOK, Circ uit Jud ges; and F ROST, District Judge. * GREGORY L. F ROST, District Judge. Appellant, Ge rald Wilmer Fouse , appea ls from a 92-month sentenc e imposed af ter he pleade d g uilty

to a sing le count of f

elon in possession of a fi re arm , i nv i o l at i o no f 1 8 U. S
. C
. § 9 2 2 (g) (1 ). Fo u s e argu es o nap p ea l th atth e t ri al j u d ge e rr on e ou sly

re lie d o n c on du c t f

ro m a dis mis se d c ount a s r e le va nt c on du c t in

de te rm ini nghis sentenc e, that the tria l judge impermissibly incre ased his cr iminal hist ory cate g ory , that the g overnme nt violated his plea agree ment, that the lack of a mens re a re quirement in U.S.S.G. § 2K2. 1( b) (4 ) i s im

pe rm iss ibl e , a

nd that th e Se nte nc ingCommis sio n e xce e de d it s a uth or ity in
c re atin gthe g uid e lin e . F or fo llo wi ngre a so ns , th is C ourt AF F IRMS
.2 I. BACKG ROUND On No ve mbe r 4 , 2 00 3, po lic e of fi c e rs we nt t o F ou se ’s ho me in o rd e r t o inve sti g ate a tip th ath e h ada l ar ge a m o un to f m ar i j u an a i na b l u e F o rdT emp o o r as i l v er L i n co l n . Al th o u gh Fouse consente d to a sea

rch of both the L incoln and his home, he insisted that the F ord Tempo was not his. The off

icer s sear ched the L incoln without finding mar ijuana, but bef ore the y enter ed Fouse ’s home, a police canine aler ted to the pre sence of mara juana in the F ord Tempo. The off icer s found key s in Fouse’ s bedroom, one of which unlocke d the For d Tempo’s doors and star

ted the ig nition. After none of the key s unlocked the trunk, the office rs opene d the trunk with a cr owbar . Fouse continued to deny that he owne d the For d Tempo and a sserted that the key s belong ed to a F ord van a nd fit both the van and the For d Tempo. In the opene d trunk, the offic ers f

ound a box containing two r evolver s, one of whic h was late r dete rmined to be stolen. The off

icer s also found a 227.9- g ram ba gof marijuana and a sc ale. In a subseque nt interview with F ouse’s housemate and son, off icer s then lear

ned of two rifles that F ouse kept in his housemate’ s closet. Off icer s also retrie ved these firea rms. On J une 29, 2004, a f

eder al g rand jury

indicted Fouse on three counts: two counts under 18 U.S.C. § 922(g) (1), f

elon in possession of as fire arm, a nd one count unde r 18 U.S.C. § 922(g )(3) , unlawful user

of a c ontrolled substance in possession of a fire arm. F ouse maintained his inn oc e nc e and

a rgue d th at ne ith e r t

he F or d T e mpo no r t

he re vo lve rs in t

he tr unk b e lon g e d to him . E ve n whe n c on fr on te d w ithfi ng e rp ri nt a nd DN A e vid e nc e that he po sse sse d th e re vo lve rs , Fouse still maintained his innocenc e, insisting that he ha d only moved the box containing the revolve rs, that he did not know what was inside the box, and that he did not know a re volver wa s3

stolen. He fur

ther a sserted that he was f rame d by another individual because of a c hild-custody dis pute . F ou se a dmi tte d th e tw o r if le s w e re his , b ut a sse rt e d th at he us e d th e m on ly to t e a c h h is children howto hunt. He did not admit guilt with respec t to the marijuana. Fouse eventua lly

enter ed into a plea

ag ree ment in which he plea ded to Count Two, felon in possession of a fire arm in violation of § 922(g )(1) , for possession of the rifles, while the g overnme nt dismi ssed Counts One and Thr ee. T his plea agree ment provided that “ [t ]he Def endant unde rstands that the Court is not a par ty to this agr eeme nt and is under no oblig ation to acc ept any

rec ommendation by

the U.S. Attorney ’s Off

ice or the par ties reg ardingthe sentenc e to be imposed.” (JA at 23.) F urthermor e, F ouse wa s informed, a nd understood throug h the plea ag ree ment, that he would be una ble to chang e his plea if the trial judg e we re to ig nore the sentenc ing guidelines. Fouse also understood pursua nt to the plea agree ment that no one wa s capa ble of makinga “bindingpredic tion or promise” a bout what the sente nce w ould be and that as longas the sente nce w as within the statutory maxi mum, Fouse must serve the pre scribed sentenc e. (JA at 23-24.) Be cause Fouse is ill iterate , the district judge at the cha ng e of ple a hea

ringrea d eac h para g raph of

the plea a g ree ment aloud to ensure that Fouse understood its terms. The district judge also inquired as to whe ther F ouse under stood what he wa s signingwhen F ouse sig ned the plea a g ree ment. The district judg e re ad aloud the c ount to which Fouse pled guilty
. Additionally , the district judge stated the potential maximum sentenc e for Fouse ’s cr ime: “ten y ear s in prison, a period of three y ear s supervised r elea se, . . . a f ine of $250,000, a

nd a mandatory

specia l assessment of $100.” (JA at 31.) Of import is that during this review, the dis tr ic t ju dg e state d th at “ [t]he U. S. A tto rn e y make s th e fo llo wi nga g re e me nts : F ir st o f a ll, it4

ag ree s that it will move to dismiss the Counts One and Thr ee at the time of sentenc ing. And I
can ma ke anothe r promise to you, if I ’m g oing to se ntence y ou on Count Two, Iwill gr ant that motion and have Counts One a nd Three put aside.” ( J A at 39.) A p re se nte nc e re po rt

wa s p re pa

re d a nd ma de ava ila

ble to F ou se and

the g ov e rnme nt i n sufficie nt time to object. That repor t placed F ouse’s Total Of fense L evel at 21 with a Criminal History Categ ory (“CHC”) of I I I , resultingin a guideline ra ng e of 46- 57 months. (J A at 52.) Although the g overnme nt initi ally indicated that it did not object to any portion of the re port, the g o v e r n m e n tl at e r

o b j e c t e d v i a l e t t e r t o an y e n h an c e m e n tb a s e d o nth e tw o r e v o l v e r s . Ap p ar e n t l y, the pr e se nte nc e re po rt

wr ite r f a ile d to fo rw ard

thi s le tte r t o th e tr ia l ju dg e , who did no t be c ome awa re of that objection until sentencing
. At sentenc ing–de spite the g overnme nt’s arguments to the contrar y , which the g overnme nt acknow ledg ed that the tria l judge was fr ee to ig nore–the trial judg e found tha t Fouse posse ssed the two re volvers identified in the dismissed Count One. In makingthis finding, the district judge reje cted F ouse’s e x planation of a frame-up a

nd relied on F ouse’s fing erpr ints being on the
case containingthe re volvers, as w ell as his DNA be ing on a revolve r and his possession of the key s to the Ford T empo. The judg e also noted that Fouse ha d a longhistory of ac quiring f i r e ar m s th atth e p o l i c e r o u t i n e l y c o n f i s c at e d an d a l o n gh i s t o r

y o f l yi n gt o o f

f i c e r s . A d d i t i o n a l l y, targ e tin gthe un de r- re pr e se ntatio n o f t he se ri ou sn e ss o f F ou se ’s c ri min a l hi sto ry and of his lik e ly
rec idivism , the trial judg e disag ree d with the repor t’s analy sis of Fouse’ s criminal history and found that it failed to take into account suff iciently Fouse ’s thirty -one c riminal convictions and the context in which they occur red. The trial judg e ther efor e deta iled Fouse ’s extensive criminal history and stated that Fouse “ is an incorr igible pe rson who continues to e ng ag e in cr iminal5

behavior , including a ssaultive behavior s, g un crimes a nd drugcrimes” (JA at 87), that Fouse ha d continually

“re ceive d exceptionally

lenient treatment from the cr iminal just ice sy stem” (JA at 78 ), and that F ou se “ is a

pe rs on wh os e ps y c ho log ic a l ov e rl ay make s it ve ry lik e ly that he wi ll continue to offe nd, particula rly throug h assaultive beha

viors” (JA at 79). Th e tr ia l ju dg e ult imate ly e nh anc e d f

or re le va nt c on du c t ( fo r p os se ssi ng3- 7 f ir e arm s, one of which was stolen) , deducte d a leve l for substantial assistance (for Fouse ’s work a s a police informant), a

nd awa rded no points for a cce ptance of re sponsibili ty (as a result of F ouse deny

ing possession of the re volvers and por tray ing himself a s a father only teac hing his sons to hunt instead of a s a fe lon in possession of firea rms). The district judg e also de parte d from Criminal History Categ ory I I Ito VIand ar

rived at a re calc ulated guideline ra ng e of 92- 115 months, rather than the lesser

rang e sug g ested by

the pre sentenc e re port. The district judg e sente nced F ouse to 92 months incarc eration and three y ear s of supervised r elea se. F ouse timely appea led. II. AN AL YSI S In h is f ir st a rgume nt o n a

pp e a l, F ou se a sse rt s th at th e dis tr ic t c ourt e rr e d in e nh anc inghis sentenc e bec ause the re w as no evide nce in the r ecor d to support the finding that he wa s g uilty of po sse ssi nga

sto le n gun . F ou se a lso c on te nd s th at th e dis tr ic t c ourt e rr e d in c on c lud ingthat hi s c ri min a l hi sto ry

c ate g or y wa s und e rs tate d, and

that a ll o f t

he fo re g oin gfi nd ing s r e nd e re d h is g uil ty ple a to b e no t kn ow ing ly

and inv olu nta ry in v iol atio n o f h is d

ue pr oc e ss r ig hts . T he se contentions are without merit. Count One, which wa s dismis sed, targ eted the posse ssion of two revolver s rec overe d fr om F ou se ’s ve hic le . A s n ote d, the tr ia l ju dg e ind ic ate d d ur ingthe ple a

he ari ngthat he wo uld6

put Counts One and Thre e “a side” a nd sentenc e F ouse on Count Two. (JA at 39.) Fouse argues that th e tr ia l ju dg e ’s c on sid e ratio n o f t he c on du c t invo lve d in

Count O ne a s r e le va

nt c on du c t di d
no t pl a c e that c ount “ a sid e ” and in f a c t de c e ive d h im i nto ple a din gg uil ty to C ount T wo in
c onne c tio n w iththe ple a

a g re e me nt. Fouse ’s ar g ument fails to cre dit sufficiently that the district court did not sentenc e him on Count One; rather , the trial judg e ultimately considere d the conduc t involved in CountOne a s re le va nt t o s e nte nc ingon

Count T wo . T he dis tin c tio n is mor e tha n s e manti c . T he tr ia l ju dg e did not punish Fouse for

beingg uilty

of Count One, but for be ing guilty of Count Two with relate d conduct of

which the Sentenc ing Guidelines permit consider ation. See U nited States v. Partington , 2 1 F .3 d 7 14 , 7 17 (6 th C ir . 1 99 4) (“ Con du c t w hic h f or ms the ba sis fo r c ounts dismiss ed pursua

nt to a plea ba

rg ain may be conside red in de termining the base offe nse leve l
un de r t he g uid e lin e s. ” ). Th e c on du c t invo lve d in Count O ne fa lls wi thi n th e c omm e nta ry to USSG § 1B1.4. As the g overnme nt corre ctly notes in its briefing , the district judge ’s ac tions aff orded F ouse a pote ntial benef it in that the trial court did not inquire into the fac ts surrounding Counts One and Thre e whe n takingthe plea, which left the f acts unde rlying the conduct involved in these counts open to dispute by Fouse at sentenc ing. F ouse took partial a dvantag e of the opportunity , contestingat sentenc ing his possession of the r evolver s. There was ample evidenc e to support the trial judg e’s f actua l findings. This Court
re vie ws a dis tr ic t c ourt ’s fa c tua l f

ind ing s at a

se nte nc ingpr oc e e din gfo r c le ar e rr or and its
a pp lic atio n o f t

he Se nte nc ingGu ide lin e s to tho se fa c ts de novo. U nited States v. Butler , 297 F.3d 505, 516 (6th Cir. 2002), cert. de nied 53 8 U .S. 10 32 (2 00 3) ; see also United States v . Hunt , 487 F.3d 347, 350 ( 6th Cir. 2007). Here , the re cord indicates that the district judg e did not believe7

Fouse ’s story

that he had be en fr amed a nd cre dited the pre sence of F ouse’s fing erpr ints on the g un c a se , h is D NAon

on e of the re vo lve rs , a

nd the pr e se nc e of

the tw o f ir e a rm s in a ve hic le to wh ic h F ou se he ld t

he ke y s in

his be dr oo m a s c ir c ums tanti a l e vid e nc e of po sse ssi on . T his supports the findingthat two firea rms wer e involved, and the stolen firea rm enha nceme nt does not require knowledg e that the Ana conda r evolver was stolen. F ouse objec ted to the suffic iency of these f acts, not to their existence. More over, a s discussed below, Circuit pre cede nt teache s that by no t sp e c if

ic a lly ob je c tin gto t

he se fa c tua l c on te nti on s, F ou se a dmi tte d th e fo re g oin gfa c ts, including the fac t that the wea pon was stolen, which moots his argument that there was insufficient e vidence from which the trial judg e could c onclude that the r evolver was stolen. Fouse ’s possession of four firea rms (two re volvers and two r ifles) thus prope rly invoked the applica

ble three -to-seve n firea

rm enha nceme nt under U.S.S.G. § 2K2.1(b) (1)( A). The fac t that one of the revolve rs was stolen r ender ed the e nhance ment under U .S.S.G. § 2K2.1(b)(4) simil arly applicable . That F ouse denie s the sufficie ncy of the fa ctfindingbelow provide s support for the district c ourt denying him an a cce ptance of re sponsibili ty adjustment based on those f acts. See U nited States v. W

ebb , 3 35 F .3 d 5 34 , 5 38 (6 th C ir . 2 00 3) (“ ‘[A ] de fe nd ant who fa lse ly denies, or f

rivolously

contests, re levant conduc t that the court de termines to be true has ac ted in a
mann e r i nc on sis te nt w itha c c e pta nc e of re sp on sib ili ty .’ ” (q

uo tin gU. S.S. G. § 3 E1 .1 c mt. N.1(a )))
. Ad dit ion a lly , th e dis tr ic t c ourt po int e d to F ou se ’s lon ghis tor y of po sse ssi ngg un s a

nd his thirty -one pr ior convictions, as we ll as other unprose cuted c harg es and a history of what the trial judge descr ibed as lenie nt treatment, be fore concludingthat the lesser criminal history

cate g ories the trial cour

t considere d did not sufficiently appre ciate the noted dang er to the public that theTh e g ov e rnme nt a rgue s th at Kennedy ’s “stepwise” appr oach no long er a pplies beca

use that 1 portion of U.S.S.G. § 4A1.3 cited in Kennedy as m andating such analy sis is no longe r a part of the g uidelines. See Ke nnedy , 893 F.2d at 829 n.6. The Court has, howe ver, r efe rre d to Kennedy in the depar ture contex t as recently as 2005 in United States v. Loggins , 136 F. App’x 789, 794 (6th Cir. 20 05 ). Th is p ane l ne e d n ot a nd ult imate ly

do e s n ot o pin e on

the g ov e rnme nt’ s c on te nti on be c a us e the trial jud ge’ s ex planation indicates that he eng ag ed in a somewhat conde nsed but sufficie nt anal y s is s a

ti s f y in g b o th th e c a te g ory -step Kennedy a

pp ro a c h a nd the le ss- me c ha

nis tic re a so na

ble ne ss approa ch of

Un ite d S tates v . S mi th , 474 F.3d 888, 894 ( 6th Cir. 2007).

8 tr ia l ju dg e sp e c if

ic a lly fo un d F ou se po se d. Al tho ug h th e tr ia l ju dg e c ou ld h ave c on c e iva bly explained his analy sis with more step-by -step deta il, no magic words ar e re quired in such a n explanation, but at mostonly a re asoned state ment from the be nch. See U nited States v. Kennedy , 8 9 3 F. 2 d

8 2 5 , 8 2 8 (6 thC i r. 1 9 9 0 ). T h e r ec o rdh er e s u p p o rt s th atth e t ri al j u d ge adequately

considere d and re

jected inter

veningcriminal history

cate g ories in ar

riving at the criminal history

depar ture. Unlike in Kennedy , 893 F.3d at 828, or in W e lls , 878 F.2d 1232, 1233 (9th Cir. 1989), the district judg e her e identified spe cific c riminal activity that justified a finding that the guidelines under- repr esente d Fouse ’s cr iminal hist ory and explicitly

stated that the g uidelines indeed unde r-r epre sented his cr iminal hist ory . The trial judg e did demonstrate that he 1 looked to the next higher

criminal history

cate g ory and did demonstrate that he found the sentenc e imposed by

the next higher

criminal history

cate g ory too lenient. See Ke nnedy , 893 F.3d at 829. By sufficie ntly

identifying a

nd explaining the 18 U.S.C. § 3553(a) fac tors involved, the district court satisfied the r equire ment that the depa rture be proce durally

rea sonable. See United Sta te s v . S mi th , 474 F.3d 888, 894 ( 6th Cir. 2007). The district cour t’s explanation also satisfied the re quirement that the de parture be substantively rea sonable be cause there is no indication that the dis tr ic t c ourt

se le c te d th e se nte nc e arb itr ari ly , b a se d th e se nte nc e on imp e rm iss ibl e fa c tor s,9

fa ile d to c on sid e r p e rt ine nt fac tors, or g ave a ny pertinent fa ctor a

n unrea sonable amount of weig ht. Id. The district cour t was there fore within its discretion to adjust Fouse ’s cr iminal history cate g ory as it did. Given that the tria l court’s fa ctual finding s and sentenc ing c onclusions were permissible,
as we ll as the exculpatory languag e of the plea a g ree ment emphasizing the district c ourt’s role a s the sole sentenc ing e ntity and that withdra

wal of the plea f

or an unde sirable se ntence was not an option, there is no basis for c oncludingthat invalidation of Fouse ’s plea is wa rra nted. See U

nited Sta te s v . B e nja mi n , 188 F.3d 509, 1999 WL685924, at *3 (6th Cir. 1999) (ta ble dec ision) (holding that war

nings in plea

ag ree ment rende red f

ailure to g ive Rule 11 war ning ha rmless). In his second ar g ument on appea l, Fouse a sserts that the district cour t violated the plea ag ree ment either e x plicitly or in spirit by

enhanc ing F ouse’s sente nce ba sed on the re volvers without advising F ouse that he c ould not withdraw his g uilty plea. F ouse fur

ther a sserts that the dis tr ic t c ourt

pr omi se d n ot t o s e nte nc e F ou se on the be havio r u

nd e rl yingCount O ne . T his argument ignor es the fa ct that the plea ag ree ment expli citly

stated that the c ourt was not bound by the par ties’ re commendations and that Fouse is bound eve n if the cour t ignor ed the
rec ommendations. (J A at 23.) The plea ag ree ment restric ted the cour t only to the statutory

maxi mum sentence . Paragraph 10 of

the Plea Agree ment states that the cour t is under “no oblig ation to acc ept any
rec ommendation by

. . . the par

ties reg ardingthe sentenc e to be imposed. The defe ndant furthe r un de rs tand s th at, e ve n if

the Court ig no re s su c h r e c omm e nd atio n o r i mpo se s a ny se nte nc e up to the maximume sta

bli sh e d b y

statut e , th e De fe nd ant c ann ot, fo r t hat r e a so n, wi thd

ra w h is guil ty10

plea.” (JA at 23.) Be cause Fouse was illiterate, the district court meticulously summarized the plea a g ree ment to ensure F ouse under stood the ag ree ment. F ou se argue s th at th e g ov e rnme nt b re a c he d th e ple a a g re e me nt b e c a

us e of the fa c ts descr ibed in the pre sentenc e re port by the United States Probation Depa rtment and be cause the prosec uting attorney

rec ounted var ious facts on the r ecor d. Desc ribing the United States Attorney ’s Off

ice a nd the United States Probation Depa rtment as “a ll the same prose cutorial ag ency” (A

plt. Br. at 33), Fouse rea sons that a promise by the prosec uting attorney

in the plea ag ree ment must bind t he probation department. B eca use the probation department de parte d from the plea a g ree ment in its guideline c alculations by citing the two revolve rs, Fouse conclude s, the g overnme nt failed to honor the c ontrac t into which it entered. This Court has previously distinguished betwe en the United States A ttorney ’s Off ice a nd the probation department in Un ite d S tates v . G arav ag lia , 1 78 F .3 d 1 29 7, 19 99 WL22 01 25 (6 th Cir. 1999) (table de cision). Se e als o U nite d S tates v . E sp ali n , 350 F.3d 488, 490 ( 6th Cir. 2003) (re fer encingwith approva l char acte rization of probation depa rtment set forth by

concur renc e). The de fenda

nt in Ga ra v ag lia had appe aled, a rguing that the prosec uting attorney had bre ache d that de fe nd ant’ s p le a

a g re e me nt b e c a

us e the pr e se nte nc e re po rt and tr ia l ju dg e bo th c a lc ulate d h is
se nte nc e by

us inga g uid e lin e no t in c lud e d in the ple a a g re e me nt, wh ic h p ur

po rt e d to se t f

or th a ll the applica

ble guidelines “that the pa rties will raise.” Id. at *3 . T he Court a ff ir me d, re a so nin gin part that the ple a agree ment stated that “this agree ment does not bind or obliga te g overnme ntal entities other than the United States Attorney ' s Offic e for the Easter

n District of Michig an” a nd that “[i] t was the probation department that fir st raised [the disputed] guideline.” Id. S i m i l ar l y, Fouse ’s plea a g ree ment states that “[t] his ag ree ment is lim ited to the U.S. Attorney ’s Off ice f or11

th e W es t ernDi s tri cto f M i ch i gan an d ca n n o tb i n d

an y o th er fe d er al , s t at e o r l o ca l p ro s ec u t i n g, administrative or re g ulatory authorities.” ( J A at 24.) A s in Ga ra v ag lia , then, the fa ct that the probation depa

rtment raise d the disputed conduc t and enha nceme nt involved here does not equa l
a br e a c h o f t

he ple a a g re e me nt. Even a ssuming ar g uendo that F ouse’s c hara cter ization of the various g overnme nt actors as fung ible is somehow corr ect, his ar g ument never theless over looks the import of the fac t that the prosec uting attorney

did in fact objec t to the presente nce r eport, that he explained the plea ag ree ment to the district court, and that he explicitl y argued ag ainst the gun enhanc ement for the two revolve rs. Fouse appea rs to reje ct any

notion that the presente nce r eport c ould be “c ured” by
arguin gthat pr e

jud ic e wa s ir

re ve rs ibl e be c a

us e the tr ia l ju dg e wa s d e te rm ine d to e nh anc e his sentenc e re g ardle ss of the plea ag ree ment and the g overnme nt’s attempted cur e. This argument g ives the trial judg e too little credit and ig nores the le ng thy discussion that took place at the sentenc ing he aring . After discussing the g overnme nt’s objections and the specific s of the plea

ag ree ment, the trial judg e re cesse d and, upon re suming the he aring , cited comments to sections 1B1.3 a nd 1B1.4 of

the guidelines in specific ally overr uling the go v ern m en t ’s o b

j ec t i o n , wh i ch fo cu s edo np ar agr ap h3 4 o f t h e p re s en t en ce re p o rt . T h e t ri al j u d ge also cited on the r ecor d United States v. Partington , 21 F.3d 714, 717 ( 6th Cir. 1994), which, as
no te d a bo ve , p e rm its c on sid e ra

tio n o f c on du c t f

or min gthe ba sis fo r d ism iss e d c ounts in deter mining a de fenda

nt’s base of

fense level under

the guidelines. Thus, the g overnme nt worked to meet its obligations, but was unsucc essful at pe rsuadingthe trial judg e to follow a ple a ag ree ment that the law doe s not require him to follow. The trial judg e wa s not bound by that ag ree ment and prope rly

considere d the information re g ardingCount One that the g overnme nt12

so ug ht t o e xclu de . A lth ou g h ju dic ia l c on sid e ratio n o f t his inf or matio n ma

y have e ff e c tiv e ly nullified the eff

ect of the plea a g ree ment, this is a permissible course of conduct that r esulted in a permissible sentenc e. Se e Un ite d S tates v . H ill , 79 F.3d 1477, 1481 ( 6th Cir. 1996). The trial
c ourt thu s d id n ot e rr

in c on c lud ingthat th e natur e and c ha ra c te r o f t he re vo lve rs F ou se contempora

neously possessed with his rifles constituted re levant conduc t under § 1B 1.3(a) (4) and Partington and informe d the Count Two conviction for posse ssion of two rifles. Additionally , possession of the re volvers constituted a c ommon scheme a nd wer e par

t of Fouse ’s
course of conduc t under §1B 1.3(a) (2). The fa ct that the prose cutingattorney rec ited many

of the da mning f acts doe s not, taken in context, m ean that the g overnme nt brea ched the plea a g ree ment beca use that attorne y continually

urg ed the tria l judge not to apply the fa cts. A neutra l rec itation of fac ts does not brea ch a ple a agree ment. United States v. Allen , 4 34 F .3 d 1 16 6, 11 75 -7 6 ( 9th Cir . 2 00 6) . T his was not an attempt by

the g overnme nt to influence the district court to impose a har sher se ntence than the one to whic h the g overnme nt ag ree d in the plea a g ree ment. The g overnme nt had alre ady lost that argument, and the pr osecutingattorney expressed a de sire simply to “support [the trial judge ’s] decision by

evidenc e that the United States ha s in its pos session” without “g oing ove r [hi s] obj ection.” ( J A at 80.) The acc ount of the fa cts arguably supplied a neutra l rec ord permitting a dequate understandingof conte x t. See id. at 1175. T o th e e x t en tth atp ro t ec t i n g th e r ec o rdo nap p ea l co u l d b e r ega rd edas ad v o ca t i n g a sentenc e in the district cour t, such ac tion mustbe viewe d in light of the ple a agree ment. Her e,

“ the ple a a g re e me nt m ake s c le ar t

hat th e tr ia l ju dg e is t

he on e wh o d e te rm ine s a

nd re so lve s a ll
se nte nc ingiss ue s and , c on sis te nt w iththi s p ro po sit ion , th e g ov e rnme nt r e se rv e d th e ri g ht t o13

defe nd any

and all sente ncingdeter

minations made by

the judg e.” United States v. Martinez , 16 F . App ’x 41 0, 41 4 ( 6th

Cir . 2 00 1) . T he fo rm e r p ro po sit ion is e xplic it i n th e ple a

a g re e me nt, while the latter

proposition is a logica l impli cation ther eof. The re w as thus no brea ch of the plea ag ree ment resultingin an er roneous se ntence . In his last two remainingarguments on appea l, Fouse attacks the role that his possession of fire arms played in his sentencing . He a rgues that there are insufficient public policy g rounds to s up po rt

the Se nte nc ingCommis sio n’ s d e c isi on to o mit a me ns re a re qu ir e me nt f

ro m § 2K2.1(b)( 4) bec ause 18 U .S.C. § 922(i) and (j), whic h include a me ns rea component, alr eady
re inf or c e the pu

bli c ’s int e re st i n r e g ulatin gfi re arm s. Th e la c k o f a me ns re a re qu ir e me nt, F ou se re as o n s , co n s t i tu t es a du e p ro ce s s v i o l at i o nb ec au s e t h e go v ern m en to b t ai n edv i a s en t en ci n g a pe na lty that it c ou ld h ave oth e rw ise ob ta ine d o nly thr ou g h a

c onvic tio n und e r 1 8 U .S. C. § 92 2( i) and (j). F ouse conte nds that § 2K2.1(b)( 4) there fore provides the g overnme nt with a “bac k door”
o r w ay ar o un d

th e h e i g h t e n e d

b ur d e no f

p r o o f th ata c o n v i c t i o nw o u l d

r e qu i r e . A d d i t i o n a l l y, Fouse asser

ts that the SentencingCommi ssion ex cee ded its authority by enac ting § 2K2.1( b)(4) beca use the Commission i s only authorized to impose increme ntal penalties for crimes of which a def endant ha s been c onvicted. Fouse ’s ar g uments fail to distinguish this Court’s prior decisions upholding the constitutionalit y

of § 2K2.1(b) (4), its lack of scienter , and the Sentenc ing Commission’s interpre tation of its enabling leg islation. This C ourt has in fa ct spec ifically addre ssed and reje cted the e x act same ar g uments Fouse pr esents on appe al. See U nited States v. Burns , 1 09 F. Ap p’ x 52, 54 -5 6 ( 6th

Cir . 2 00 4) (c oll e c tin gc a se s su pp or tin gthe pr op os iti on

that “ [t]his c ir c uit and eve ry other c ircuit to have c onsidered the issue have a lso concluded that the lack of a mens14

rea require ment in § 2K2.1(b)( 4) c omp or ts w ithc on sti tut ion a l r e qu ir e me nts ” ); United States v. W oods , 61 F.3d 904, 1995 WL428334, at *3 (6th Cir. 1995) (ta ble dec ision) (“Ne ither the
a bs e nc e of a sc ie nte r r e qu ir e me nt i n th e g uid e lin e s n or the pr e se nc e of

a sc ie nte r r e qu ir e me nt i n 18 U.S.C. § 922(i)–a statute under which the de fenda

nt was not cha

rg ed–make s the sentenc ing
e nh anc e me nt u

nc on sti tut ion a l.” ); United States v. He ndricks , 956 F.2d 1164, 1992 WL44737, at *6 (6th Cir. 1992) (table decision) ( “The languag e of se ction 994[I ](1) does not seem to re strict the Commiss ion's pow er to impose incr ease d penalties for unchar g ed conduc t”). Fo u s e o ff er s n o co mp el l i n g re as o nt o d i s t i n gu i s hth i s p re ce d en t . Ac kn o wl ed gi n g Burns in his brief, F ouse off

ers that, in contr ast to his sit uation, the def endant in that ca se had a dmitted that the fire arm at issue was stolen. B ut this provides lit tle contra st to the case sub judice , wher e Fouse never

contested be low that one of the revolve rs re cover ed fr om his car wa s stolen. Rather, F ou se argue d in

the dis tr ic t c ourt on ly

that he did not possess the two fire arms and that he did not know that the Ana conda r evolver was stolen. (JA at 58.) A fa ilure to object to a f actua l contention containe d in a pre sentenc e re port amounts to an admission of that fac t. See U nited Sta te s v . D e Car lo , 434 F.3d 447, 460 ( 6th Cir. 2006) (“The two-leve l enhanc ement for computer
use wa s admitted by

DeCar lo beca

use he did not objec t to that fact a s repor ted in his presente nce repor t.”). F ouse there fore admitted the stolen nature of the Ana conda r evolver
. This admission nega

tes the nee d for opiningon plain err or re view her e. The Court
rec og nizes that the gove rnment sug g ests that Fouse has wa ived all but plain err or as to the tria l court’s de termination that the Ana conda r evolver was in fa ct stolen. See Fe d. R. Crim. P . 52(b). Under this argument, the g overnme nt sugg est that the Court nee d not eng ag e in extended discussion of plain err or inquiry beca use any err or below c ould not be said to have a ffe cted15

Fouse ’s substantial rig hts so as to warr ant potential re lief. This is beca use the 92-month sente nce he re c e ive d w iththe dis pute d e nh anc e me nt i s w ith in t he g uid e lin e ra

ng e in whic h F ou se wo uld have f allen without application of the enhanc ement (but still with the increa sed cr iminal hist ory cate g ory ), which the g overnme nt posits precludes findingplain err or her e. See United States v. Mazyc k, 178 F. App’ x 321, 322 (4th Cir. 2006). Ther e is potentially some qualified support within this Circuit for followingthe Mazyc k rationale
. See U

nited States v. Parks , 149 F.3d 1185, 1998 WL384562, at *2 (6th Cir. 1998) (ta ble dec ision) (holding that where the sentenc ing judge indicated that a

defe ndant would re ceive the same se ntence under ove rlappingg uideline rang es re g ardle ss of whethe r an e nhance ment applied, the se ntence imposed using the
e nh anc e me nt d id n ot a ff

e c t a de fe nd ant’ s su

bs tanti a l r ig hts and

the re fo re did

no t c on sti tut e pla in
e rr or ). B ut g ive n th at Mazyc k is a Four th Circuit decision and that this Court’s own De Car lo char acte rizes the failure to object as a n admission as opposed to a waiver , the Court declines the g ov e rnme nt’ s unn e c e ssa

ry inv itatio n to e ng a g e in a

pla in- e rr or

ana ly sis he re . F ou se ’s argume nts as to § 2K2.1(b) (4) a

re of no merit. III . C ON CL USI ON F or the fo re g oin gre a so ns , th e Cou rt AF F IRMS
.